The Case Against the Confirmation of John Ashcroft As Attorney General of the United States: Part II

An Attorney General’s crusade to obstruct voluntary desegregation.

Ashcroft’s significant involvement with desegregation in St. Louis began around 1980, for in that year both the federal court of appeals for the Eighth Circuit and the federal district court in St. Louis found both the State of Missouri and the City school board liable for continued segregation of the public schools. The State’s liability was based primarily on state legal and constitutional provisions dating back to 1865, which mandated separate schools for blacks and whites (provisions not completely repealed until 1976); the mandatory transfer of black suburban students into segregated city schools to enforce segregation; and the state’s failure to take effective action to dismantle the racially dual school system and its effects. See Adams v. United States, 620 F.2d 1277, 1280-81 (8th Cir.), cert. denied, 449 U.S. 826 (1980). As the district court recognized that year, "the State defendants stand before this Court as primary constitutional wrongdoers who have abdicated their affirmative remedial duty." Liddell v. Board of Education of City of St. Louis, 491 F. Supp. 351, 359 (E.D. Mo. 1980), aff’d, 667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081, 1091 (1981).

As part of its May 1980 order, the district court ordered desegregation in St. Louis to begin that fall. One provision of the court’s order, as specifically suggested by the court of appeals, called on the City Board and the State to seek the cooperation of suburban districts to enhance school desegregation by developing a "voluntary, cooperative plan" in which city and suburban students could choose to transfer between the city and the suburbs. 491 F. Supp. at 353.

The City Board and the suburbs promptly began to discuss such a voluntary plan. On behalf of the State, however, Ashcroft immediately announced he would appeal, seeking to overturn even the provision that called only for planning of a voluntary city-suburb program. The St. Louis Post-Dispatch noted that Ashcroft’s actions "nearly wrecked" the initial city-suburban meeting efforts. St. Louis Post-Dispatch (June 20, 1980). Despite the opposition of the City Board and the United States, which had intervened in the case on the side of the plaintiffs, Ashcroft asked the court of appeals to delay the order while the appeal was being heard. When the court of appeals turned Ashcroft down in August, he asked the Supreme Court for another delay. Ironically, he did not ask for a delay in mandatory student transfers within St. Louis, but did try to further postpone work on a voluntary city-suburb plan. The Court denied Ashcroft’s request. Years later, an expert witness involved in the case testified that the City Board and the state had enjoyed a brief period of cooperation in 1980, but that after the May 1980 order, Ashcroft told state education officials "not to talk with anyone." St. Louis Post-Dispatch March 23, 1996.

Although the district court’s order had directed the parties to work out a voluntary plan to begin in 1980-81, delays continued throughout the school year. After the state finally submitted an initial plan, the judge rejected it as lacking in specifics and called on the state to submit another, but the state did not do so. The NAACP and the City Board then filed a claim for mandatory interdistrict relief, based in part on the failure of the state to act. Ashcroft responded not only by opposing any such mandatory relief, but by declaring that voluntary efforts were now impossible and by asking for another delay in submitting a voluntary plan. The St. Louis Post-Dispatch excoriated Ashcroft:

The logic of these arguments is mystifying...Even now, acquiescence in a voluntary program might dispense with the need for one ordered by court...As matters stand, a state that for more than a century required its schools to segregate the races now presents itself as unable to help them desegregate, even on a voluntary basis...Judge Meredith had asked the state to take the lead in developing suggestions for a voluntary program. Take the lead? The attorney general has put state leadership in reverse.

St. Louis Post-Dispatch, Feb. 1 and Feb. 4, 1981.

Throughout this period, Ashcroft continually sought to thwart desegregation by failing to comply with orders and deadlines for submission of plans and seeking delays from the appellate court. Finally, in March, 1981, the district judge entered a blistering order threatening to hold the state in contempt if it failed to submit a voluntary plan within 60 days. The judge criticized the state’s "continual delay and failure to comply" with the court’s orders. Associated Press, March 5, 1981. "The court can draw only one conclusion," the judge explained, "the state has, as a matter of deliberate policy, decided to defy the authority of this court." St. Louis Post-Dispatch (March 5, 1981).

Although Ashcroft claimed that the state was working on a voluntary plan, he again asked the appellate court and then the Supreme Court for a delay, as he also sought to have the Supreme Court overturn an appellate court decision fully affirming the district court’s May 1980 order. All these requests were denied.

As 1981 continued, Ashcroft persisted in his efforts to disrupt voluntary desegregation efforts. For example, when the court named Susan Uchitelle, a state education official, to oversee voluntary desegregation efforts, which could presumably have helped secure state cooperation, Ashcroft demanded her removal. The Post-Dispatch noted that the state could have felt "honored by the use of Ms. Uchitelle as a leader" in the voluntary desegregation effort, but "[i]nstead, Missouri’s attorney general acts as if segregation is here to stay." St. Louis Post-Dispatch (July 14, 1981). Around the same time, the Reagan Administration Justice Department submitted a plan to encourage voluntary desegregation by offering free state college tuition to students who agreed to city-suburban transfers. The City Board agreed, several suburban districts and a state university official praised the idea, and the Reagan Administration received praise for suggesting a plan to promote voluntary desegregation consistent with its opposition to mandatory busing. Nevertheless, Ashcroft balked at the suggestion, basing his opposition on cost and on claims that the plan would result in the transfer of "the most motivated" black city students to the suburbs. Newsweek (May 18, 1981).

The federal proposal also produced another result for Ashcroft. He began to hold talks with Reagan Adminstration officials, which Ashcroft reportedly tried to keep secret, about the St. Louis and Kansas City cases. It was soon reported that Ashcroft was trying to convince Reagan Justice Department officials to switch sides and support the state in its latest effort to get the Supreme Court to reverse lower court rulings in the St. Louis case. In the short run, those efforts failed, as the Justice Department suggested that the Court should not accept Ashcroft’s request. When the Court again rejected Ashcroft’s appeal, he remained defiant, proclaiming that "this fight is a long way from being finished." UPI (Nov. 30, 1981). The Post-Dispatch noted that "legal contentions can be pursued on and on," but urged "the state of Missouri and its attorney general" to "begin working for desegregation instead of obstructing it." St. Louis Post-Dispatch (Dec. 1, 1981).

The new year of 1982, however, saw little change in Ashcroft’s attitudes and tactics. In January, speaking to a suburban rotary club, he attacked desegregation and declared that busing is "unconstitutional discrimination against all groups." St. Louis Post-Dispatch (January 13, 1982). He lost another appeal in which he contested again the state’s liability and protested any voluntary city-suburb plan. The appellate court’s opinion pointedly urged the state to participate in the desegregation budget process "so that the annual budget can be determined on a cooperative rather than an adversary basis." Liddell, supra, 677 F. 2d 626, 628 (8th Cir.), cert. denied, 459 U.S. 877 (1982). For the second year in a row, the Supreme Court denied Ashcroft’s request for a full review. One news article noted that Ashcroft was "making himself a familiar advocate before the Supreme Court, most often as the antagonist of civil rights interests." St. Louis Post-Dispatch (Nov. 7, 1982). The article quoted civil rights lawyers who criticized Ashcroft’s "zealous, litigate-to-the-end" approach, and noted that his frequent appeals to the Court were discouraging suburban districts from joining the voluntary city-suburb plan. Although noting that the Court’s acceptance of a number of (non-desegregation related) appeals demonstrated that Ashcroft’s office was certainly not being frivolous, the article quoted one former assistant attorney general as highly critical of the "litigate-to-the-end" approach even in innocuous suits, comparing Ashcroft unfavorably to his predecessor, John Danforth.

The article noted Ashcroft’s harsh and racially divisive rhetoric in court papers. For example, in his latest appeal to the Supreme Court, the article explained, Ashcroft called the lower court action "grossly unjust" and complained that if the defendant was "an individual, especially a minority, neither this court nor the court of appeals would have permitted" the procedures used. Id. Critics likened Ashcroft’s handling of the St. Louis case "to the massive resistance that some Southern politicians mounted in the 1950s and 1960s to oppose desegregation." One attorney who asked not to be named stated that "[a] lot of what he does is to delay and harass" and that he "appeals everything to the Supreme Court." Id. School desegregation expert Dr. Gary Orfield was reported as testifying in court that the state’s arguments reminded him of the defense of segregation in Brown v. Board of Education itself. Dr. Orfield stated that he had been reading the Brown transcript "where the attorney representing the government of South Carolina argued that it would be educationally better to leave the black children segregated." He explained that "I thought I wouldn’t hear state government producing that argument again" but was "very disappointed to hear it" in the St. Louis case. Id.

In 1983, Ashcroft’s efforts to obstruct voluntary city-suburban desegregation reached a new level. Shortly before the trial of the segregation claims against the suburban districts was to begin, the City Board, the NAACP, and the suburban districts announced a tentative settlement. The agreement called for significant expansion of the city-suburb voluntary desegregation program, as well as for additional efforts to improve education in city schools to help remedy the educational vestiges of segregation. Although the State department of education had reportedly made positive comments about the plan, Ashcroft and the City of St. Louis promptly opposed it. Ashcroft criticized the costs that would be imposed on the state, and asserted that mandatory transfers could occur in the future if the plan failed. He had critical letters hand-delivered to each of the suburban districts. A source close to the negotiations reported that Ashcroft was not "telling the whole story" and was "trying to scuttle this agreement." St. Louis Post-Dispatch (April 2, 1983).

One of Ashcroft’s major objections to the plan - his claim concerning its costs - was criticized not only by the Post-Dispatch, but also by St. Louis Archbishop John L. May. The Archbishop urged citizens to ignore the "hysterical figures" and to emphasize the positive "in place of the dirges we have been hearing from Jefferson City," the state capital. UPI (July 25, 1983). The Archbishop and 10 other prominent religious and public figures endorsed the plan. Although acknowledging Ashcroft’s proper role in defending the state, then-Senator and former state Attorney General John Danforth split with Ashcroft and announced his support for the plan. Suburban districts rejected Ashcroft’s race-tinged claim that the plan would "subordinate education to other objectives" and his insistence that he would have preferred to litigate the case. In July 1983, despite Ashcroft’s three-year efforts, the City Board and all 23 suburban districts approved the plan, and the federal court accepted it.

Ashcroft and the City announced they would appeal and sought a district court order to delay the plan. Even though the school year had already begun, Ashcroft asked the court of appeals to stay the plan - and effectively order thousands of students uprooted from the schools they had begun - in September. Although the court of appeals did temporarily limit the plan to students who had already transferred and did prevent any possible court action to change city tax rates, the appellate court firmly rejected most of the stay order that Ashcroft requested. As a result of such a stay order, the court explained, the "lives of thousands of students and teachers would be disrupted before this court had decided the matter on its merits." AP (Sept. 13, 1983).

In early 1984, the last year of his term as Attorney General, Ashcroft announced his intention to run for governor. In his announcement speech, he pledged to continue to fight "tooth and nail" to oppose the "just plain wrong" St. Louis desegregation orders, vowing that "this battle is not over." UPI (Jan. 3, 1984). Ashcroft soon received another court setback, as the full 8th Circuit Court of Appeals voted 7 to 2 to uphold most of the desegregation plan. The court painstakingly noted that on three separate occasions it had already rejected the state’s arguments against the use of voluntary interdistrict transfers and that each time the Supreme Court had denied review. Liddell, supra, 731 F.2d 1294, 1302-05 (8th Cir.)(en banc), cert. denied, 469 U.S. 816 (1984). The appeals court nevertheless considered Ashcroft’s arguments for the fourth time, and again rejected them. Id. at 1305-1309.

The court did agree with Ashcroft that the state should not pay for voluntary integrative transfers of black suburban students from predominantly black to predominantly white suburbs, since that would not help promote desegregation in the city. Even though that part of the order affected only 311 students, Ashcroft moved immediately to cut off payments for those students, prompting fears that they would be forced to return to their former schools with only three months left in the school year. Critics called Ashcroft’s actions a "cruel way to deal with students who had placed their educational hopes in their new schools." St. Louis Post-Dispatch Feb. 19, 1984. A split court of appeals avoided such an outcome by ordering the state to continue the payments temporarily, subject to a later good faith effort among the suburbs and the state to allocate the costs. Ashcroft called the decision a "gross miscarriage of justice" and predicted it would help his case in the Supreme Court. St. Louis Post-Dispatch March 6, 1984.

Once again, Ashcroft sought review of the court of appeals decision in the Supreme Court, with the opposition this time joined by the League of Women Voters in the St. Louis area. Ashcroft did obtain a new ally, however, convincing the Reagan Justice Department to complete its reversal of position and join his efforts in the Court, as a result of what Ashcroft described as his "arduous effort" at persuasion. St. Louis Post-Dispatch July 24, 1984. Nevertheless, the high Court turned Ashcroft down for a third consecutive year, prompting Ashcroft to claim that the Court had "wrongfully sanctioned the judiciary’s usurpation of legislative authority" and to pledge to keep fighting. St. Louis Post-Dispatch Oct. 2, 1984. The Post-Dispatch noted the progress made under the plan, with over 5,500 students participating in totally voluntary desegregation transfers plus better education in only its second year, all f"[d]espite the attorney general’s efforts." St. Louis Post-Dispatch Oct. 3, 1984.

In the meantime, Ashcroft was busily using the desegregation issue in his gubernatorial campaign. During the Republican primary campaign, Ashcroft and his primary opponent were "trying to outdo each other as the most outspoken enemy of school integration in St. Louis," and "exploiting and encouraging the worst racist sentiments that exist in the state." St. Louis Post-Dispatch March 11, 1984. Ashcroft publicly wore the threatened federal contempt citation against him as a badge of honor, arguing that it showed he had "done everything in my power legally" to fight the desegregation plan. UPI, Feb. 12, 1984. Ashcroft criticized the St. Louis plan as "grandiose programs just to enhance a few students," ignoring the thousands who were being helped. Jefferson City Post, Oct. 5, 1984. In one debate, he called the plan an "outrage against human decency" and an "outrage against the children of this state." St. Louis Post-Dispatch June 15, 1984. His campaign bombarded voters with telegrams claiming that his primary opponent had changed his support for the plan to opposition. St. Louis Post-Dispatch Aug. 4, 1984. At one point, he appeared to compare desgregation to drug use, stating that the people who are against the desegregation plan also pay for it "[b]ut some people sell pot and think it should be legalized, and we fight against them with their tax money," and "I don’t have any problem with that." Columbia Missourian July 18, 1984. Ashcroft’s media consultant described an ad attacking alleged waffling by his primary opponent on desegregation as Ashcroft’s "silver bullet." St. Louis Post-Dispatch Dec. 30, 1984.

Newspapers on both sides of the desegregation issue were highly critical of Ashcroft, along with his primary opponent, for divisive rhetoric. The Daily Dunklin Democrat, which had supported Ashcroft’s desegregation appeals, nevertheless criticized the Republican primary campaign as "reminiscent of an Alabama primary in the 1950s." St. Louis Post-Dispatch Oct. 26, 1984. The African-American newspaper St. Louis American was even harsher towards Ashcroft. "Here is a man who has no compunction whatsoever to standing on the necks of our young people merely for the sake of winning political favor," the American wrote. "Ashcroft implies at every news conference, radio and television interview that he couldn’t care less what happens to black school children." St. Louis Post-Dispatch Feb. 29, 1984.